AMAZON E-COMMERCE STORE MANAGEMENT SERVICES AGREEMENT
THIS AGREEMENT is entered into thisday of , 2022 (the “Effective
Date”) by and between XXX LLC, a XXX limited liability company (“Agent”),
and (Company Name), a (State) limited liability company
(“Owner”) (Agent and Owner are collectively referred to herein as “Parties”).
RECITALS
WHEREAS, Agent provides management services for operators of Amazon e-commerce stores
and is willing to provide these services to Owner pursuant to the terms and conditions herein.
WHEREAS, Owner seeks to hire Agent to provide management services to Owner for an Amazon
e-commerce store which is now or will soon be established by Owner.
NOW, THEREFORE, in consideration of the premises and promises set forth herein and for other
good and valuable consideration, intending to be legally bound, the Parties hereby agree as follows:
1. DEFINITIONS:
(A) “Agreement” shall mean this AMAZON E-COMMERCE STORE MANAGEMENT SERVICES
AGREEMENT along with any addendums attached to and executed therewith.
(B) “Amazon E-Commerce Store” or “Store” shall mean the e-commerce store that Owner
establishes with Amazon.com, Inc.
(C) “Amazon Terms and Conditions” shall mean the terms and conditions for management
and operation of the Store as published and determined by Amazon.com, Inc.
(D) “Cause Termination” shall include, without limitation, any act or omission by Owner that
in Agent’s sole discretion constitutes a breach of this Agreement for which Agent shall
have the right to terminate this Agreement for cause.
(E) “Company” shall mean the business entity (other than a sole proprietorship) legally
formed by Owner and solely owned and managed by Owner.
(F) “Configuration Period” shall mean the approximately four (4) to eight (8) week period
after this Agreement’s execution during which Owner and Agent shall cooperatively work
together to establish Owner’s Store.
(G) “Consumer” shall mean a person who purchases a Product from Owner’s Store.
(H) “Customer Support Team” shall mean Agent’s employees or subcontractors deemed
necessary and appropriate by Agent to provide management services.
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(I) “Gross Sales” shall mean the total of all sale transactions reported in the calendar month,
without any deductions included within the figure.
(J) “Initial Payment” shall mean the payment of Eighteen Thousand Dollars ($18,000) by
Owner to Agent due upon execution of this Agreement.
(K) “Maintenance Fee” shall mean the monthly fee of fifty percent (50%) of the Net Profit
of the Store (based upon the prior calendar month’s Net Profit of the Store) or One
Hundred Dollars ($100), whichever is greater, to be paid by Owner to Agent on the first
of each month following the Initial Payment.
(L) “Net Profit” shall mean the Gross Sales of Owner’s Store minus cost of the Products,
returns of Products, Amazon Fees, and sales discounts.
(M) “Product” shall mean the goods promoted on and available for sale on Owner’s Store.
(N) “Product Capital” shall mean Company’s available funds of at least Twenty Thousand
Dollars ($20,000) in liquid funds or credit to be maintained by Owner at all times.
(O) “Ramp Up Period” shall mean an anticipated period of four (4) to six (6) months after the
Configuration Period.
(P) “Tax” shall mean any and all federal or state income, sales, or other tax required by law
in the United States and/or any state in which Products are sold.
2. TERM:
(A) This Agreement shall be effective on the date of execution, shall continue for a period of
two (2) year (“Initial Term”), and may be extended for successive periods of one (1) year
renewal terms as set forth below.
(B) This Agreement may be extended for additional one (1) year terms (“Renewal Term”) by
Owner’s payment to Agent of the sum of Two Thousand Dollars ($2,000) (“Renewal
Payment”). In the event the Store does not realize a Net Profit of at least One Dollar
($1.00) within one (1) year of the initial execution of this Agreement, then Agent (at
Agent’s sole discretion) may waive the first Renewal Term’s Renewal Payment. Any
subsequent Renewal Payment for any additional Renewal Term(s) thereafter shall be
assessed and must be paid by Owner, regardless of any Net Profit (or lack thereof).
(C) Notwithstanding the foregoing, this Agreement will be deemed terminated and Agent
shall owe no further obligation to Owner: (i) in the event of a Cause Termination arising
from Agent’s determination in its discretion that Owner has breached this Agreement;
(ii) upon the expiration of the Initial Term or any Renewal Term, unless in the event Owner
makes the Renewal Payment; (iii) if Owner elects to terminate this Agreement during the
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Initial Term or any Renewal Term, by providing thirty (30) days advance written notice to
Agent; or (iv) at the conclusion of the fourth (4 th ) Renewal Term, in which event Owner
and Agent may then enter into a new agreement.
3. COMPENSATION:
(A) Owner shall pay to Agent a one-time, non-refundable Initial Payment of Eighteen
Thousand Dollars ($18,000), via wire transfer or ACH to Agent’s designated account, to
commence the Initial Term. Thereafter, for each and every Renewal Term, Owner shall
pay to Agent the additional sum of Two Thousand Dollars ($2,000), via wire, cash app or
ACH transfer to Agent’s designated account, unless waived by Agent (at Agent’s sole
discretion) in accordance with the conditions and limitations of Section 2(B).
(B) Each month of the Initial Term and any Renewal Term(s), Owner shall pay Agent a
Maintenance Fee for Agent’s ongoing time and services which shall be fifty percent
(50%) of Net Profit for the preceding month or One Hundred Dollars ($100), whichever is
greater.
(C) Owner shall continue to pay the Maintenance Fee for as long as Agent provides
management services pursuant to this Agreement.
(D) The Maintenance Fee shall be based solely upon the Net Profit of the Store and any
delayed payments from Amazon for the Products shall not reduce the Maintenance Fee
(E) Agent shall bill Owner on a monthly basis for the Maintenance Fee after which Owner
shall have seventy-two (72) hours to remit payment to Agent from the date such bill has
been rendered.
(F) Agent reserves the right to cease performance of the management services for failure to
pay any amount due within this period.
(G) The owner shall employ the services of a third-party bookkeeper or other to keep track
of all finances and profits on their end. Furthermore, the owner must create an Intuit
online Self-Employed Accounting Software by QuickBooks.
4. OWNER’S RESPONSIBILITIES:
(A) Before Agent commences any obligation under this Agreement, Owner shall provide to
Agent proof of formation of Owner’s Company. Owner shall maintain such Company
throughout the entirety of the term of this Agreement, shall be solely responsible for its
management, and shall hold all rights and ownership interest in the Company. Agent
provides no advice or input regarding the formation, operation, or otherwise regarding
such Company, and Owner hereby acknowledges that Agent has not provided any
information or advice regarding such Company.
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(B) Company shall maintain a banking account and/or credit card on file with Amazon for the
purchase of the Products sold through Owner’s Store, and Owner shall make available
and maintain the Product Capital with Agent and/or the Store through Amazon.
(C) Owner understands and agrees that such Product Capital is required and necessary for
the daily operations of the Store and further understands and agrees that:
i. Because Amazon, on average, withholds payment for Products for approximately
two (2) weeks after the sale of a Product and because Product Capital will be
reduced prior to the payment to Owner for the sales of the Product, Owner must
maintain the Product Capital at all times;
ii. In the event the Product Capital on file associated with Owner’s Store is depleted
and/or the purchasing ability is rejected by Owner’s bank or credit card, then
Agent will be incapable of operating Owner’s Store until such time funds and/or
credit is available;
iii. Owner’s failure to maintain the Product Capital could result in the Store being
suspended, Products not being delivered to Customers, and/or the Store not being
profitable;
iv. Amazon controls and dictates the remission of all sales monies related to the
Product sales; and
v. Agent has no control over when Amazon remits the payments for the sales of the
Store’s Products and has no ability to make such payment occur quicker than as
dictated by Amazon.
(D) Owner understands and agrees to maintain independent accounting of the Store’s
performance and further understands and agrees that:
i. At least on a monthly basis, Owner shall log into the Amazon platform to download
and record any and all of the Store’s accounting data;
ii. In the event Owner has any questions or concerns about the Store’s performance,
Owner shall immediately contact Agent, in writing, and provide all accounting data
maintained by Owner relating to any questions or concerns; and
iii. Owner’s failure to provide complete data to Agent will cause delay and/or
potentially inaccurate responses from Agent in response to Owner’s questions or
concerns related to Owner’s Store.
(E) Owner understands and agrees that Owner shall be solely responsible for the Owner’s,
Store’s or Company’s Taxes and further understands and agrees that:
i. Agent is not an accountant and not a tax expert and does not provide tax reporting
or tax management services of any kind;
ii. Owner is solely responsible for determining if Owner, Store, or Company are,
individually or collectively, responsible for collecting and remitting any Taxes and,
if so, to whom; and
iii. Owner shall consult with their own independent Certified Public Accountant, tax
expert, and/or tax lawyer regarding any questions regarding Owner’s, Store’s,
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and/or Company’s Taxes.
(F) Owner and Owner’s Store are subject to Amazon Terms and Conditions at all times. Agent
makes no representations or warranties as to this Agreement’s compliance with Amazon
Terms and Conditions. Owner hereby agrees and understands that Amazon, from time to
time, with or without cause, can and does suspend accounts for various reasons, some of
which may not be obvious or justified. Owner further agrees and understands that, as the
owner of an Amazon store, Owner is subject to (and must comply with) Amazon Selling
Policies and Seller Code of Conduct.
(G) Owner expressly represents that Owner has reviewed, acknowledges, and fully
understands Amazon Terms and Conditions and that Owner has an independent
obligation to remain apprised of Amazon Terms and Conditions, including any
amendments.
5. AGENT’S RESPONSIBILITIES:
(A) Agent has the exclusive right to provide management services for Owner’s Store during
the term of this Agreement, and Owner will cooperate with Agent to facilitate Agent’s
management services.
(B) Product research and selection – Agent will assist Owner with review, research, and
selection of all Products.
(C) Store Implementation – Agent employs teams of individuals skilled in different aspects of
e-commerce who will assist Owner with creating and maintaining Owner’s Store. These
teams shall assist Owner in the Store’s configuration related to the Store’s storefront,
establishing the necessary relationships with suppliers, and configuring the front and back
end systems necessary to implement the Store.
(D) Customer Support – Agent shall arrange and provide a Customer Support Team in support
of Owner’s store which shall assist Owner in responding to Customer phone and/or email
inquiries and exercise their best efforts to resolve all Customer inquiries, handle product
returns, and manage billing matters.
(E) Ongoing Account Management – Agent assist with oversight of Owner’s Stores and the
performance of Owner’s Store, while making online tools available to Owner that permit
Owner to monitor Store’s performance.
(F) Suspension Appeals – In the event Amazon suspends Owner’s Store based solely upon an
alleged violation of Amazon Terms and Conditions, and so long as Owner has paid all
amounts due and owing to Agent pursuant to this Agreement, including but not limited
to, monthly Maintenance Fees, Agent shall provide suspension appeal services at Agent’s
sole expense in an effort to have such suspension lifted (the “Appeal Services”). These
Appeal Services may include sending one or more written appeals to Amazon until the
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Store is unlocked (up to a maximum of 15 appeals), continually and repeatedly contacting
Amazon via telephone, utilize back doors and private channels to more effectively
communicate with Amazon, sending a Release Funds request letter ninety (90) days after
the start of the suspension period if any funds are being withheld, provide updates at
least once weekly to Owner regarding the status of Agent’s appeal efforts, and providing
coaching and direction to Owner regarding the process of requesting and opening a
second Amazon selling account. Further, should Owner meet Amazon’s criteria for
additional selling account(s), Agent agrees to, at Owner’s request, provide management
services in connection with one (1) other store (to be designated by Owner) until such
time as Owner’s original Store is reinstated from suspension. Owner must then select
which of Owner’s then-active Amazon stores should continue receiving the management
services; Agent will cease providing such services to Owner’s other store unless and until
Owner pays the applicable Initial Fee and agrees to pay monthly maintenance fees for
both stores.
6. NON-DISPARAGEMENT/NON-DISCLOSURE: To facilitate professionalism and protect Agent’s
confidential information, Owner understands and agrees that (i) Owner shall not disparage,
insult, or criticize Agent to any third-party or in any public or private forum including, but not
limited to, social media channels, regardless of whether such statement or information would
constitute libel or slander, and regardless of whether such statement could be deemed factually
true or false; and (ii) Owner shall keep confidential any and all non-public business information
provided or shared by Agent with Owner about Agent’s business activities and specifically agrees
to not disclose any such information with any third-party or use any such information for any
purpose other than in connection with facilitating Agent’s services under this Agreement.
7. CONFIDENTIALITY. The parties to this Agreement agree that each shall treat as confidential all
information provided by the other party to regarding such party’s business and operations,
including without limitation the investment activities or holdings of the Fund, business
operations, income statements. All confidential information provided by a party hereto shall be
used by other party hereto solely for the purposes of rendering services pursuant to this
Agreement and, except as may be required in carrying out the terms of this Agreement, shall
not be disclosed to any third party without the prior consent of such providing party. The
foregoing shall not be applicable to any information that is publicly available when provided or
which thereafter becomes publicly available other than in contravention of this Section 9 or
which is required to be disclosed by any regulatory authority in the lawful and appropriate
exercise of its jurisdiction over a party, any auditor of the parties hereto, by judicial or
administrative process or otherwise by applicable law or regulation.
8. INTELLECTUAL PROPERTY: Owner’s Store is a service hosted on the Amazon platform and not a
distinct or severable product that can be ported, removed, or installed in or on a different place
or platform. Accordingly, Agent has no claim of right, title to, or ownership in the Store, the
Store’s trade name or trade dress, or any other intellectual property owned or controlled by
Owner and/or Amazon. Further, Owner has no ownership or controlling rights over Agent’s
platform, Agent’s agents or employees, the entity known as eMarketing Mind LLC, or any
subsequent entity owned by Agent, including any entity performing services pursuant to this
Agreement.
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9. NON-COMPETITION: Owner will not create or seek to create any Amazon store that competes
with the Store that Agent shall manage for Owner, including but not limited to selling the same
or substantially similar products, or using the Store trade name or trade dress, anywhere in the
United States, for the Term of this Agreement plus two (2) years after its termination, which
Owner agrees is a reasonable limitation in time and scope. Owner will not offer to third parties
services that are the same or substantially similar to Agent’s, including the ability or willingness
to set up Amazon stores, services or sales channels, anywhere in the United States, for the term
of this Agreement plus two (2) years, which Owner agrees is a reasonable limitation in time and
scope. Because the services under this Agreement are providing Products within the entirety of
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the United States, Owner agrees that the breadth of the non-competition throughout the
entirety of the United States is reasonable.
10. LONG-TERM BUSINESS VENTURE: Owner hereby accepts and understands that the Store is a
long-term investment and the Store’s performance may not result in a Net Profit to Owner during
the Ramp Up Period. Following the Configuration Period and during the Ramp Up Period, Owner
understands it may take additional time for the Store to gain traction within the Amazon
environment in the form of search visibility and account integrity. Owner accepts and
understands that the Ramp Up Period may not reflect the Store’s eventual profitability and
agrees to cooperate in full with Agent in making any adjustments to the Store to the Store’s full
potential. Owner understands that the Configuration Period and Ramp Up Period may take as
long as one (1) year. Owner understands and accepts that the availability of Product Capital is
often a reason, but not the sole reason, for the Ramp Up Period to take longer.
11. BUSINESS RISK: Owner hereby accepts and understands that e-commerce is an ever-changing
industry that is subject to many different types of business risk, including but not limited to:
(A) A changing legal environment in which regulations can emerge or change that affects the
marketability of Amazon products;
(B) Macroeconomic changes that affect consumer spending, the emergence of recessions
and the like;
(C) Changes in the popular appeal of and demand for different types of Amazon products;
(D) Changes in Amazon’s terms and conditions, to which Agent and Owner are bound alike,
which may affect the marketability of Owner’s store’s products;
(E) Changes in international politics or economics, which may affect, among other things, the
ability to package, distribute and/or ship Amazon products, and the costs thereof;
(F) Market forces, including increased and/or changing levels of competition for any given
product from other sellers of such product;
(G) Unforeseen events, force majeure, and other external events that could affect the
performance of any Amazon store.
Owner hereby agrees and understands that there are no guarantees as to the Store’s profitability
at any time and acknowledges that Owner is at risk of a total loss of Owner or Company’s
investment. Owner should only invest funds that Owner can afford to lose and should consult
Owner’s legal, business, financial, or accounting advisors and/or professionals prior to entering
into this Agreement. Owner further understands and acknowledges that Agent has advised
Owner that Owner should not take out any new loan(s) or otherwise overextend itself in order
to pay the Initial Fee and/or any Renewal Fee.
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12. SUCCESS DISCLAIMER: ANY AND ALL CLAIMS OR REPRESENTATIONS AS TO INCOME EARNINGS
BY AGENT ARE EXCEPTIONAL RESULTS AND NOT AVERAGE EARNINGS. OWNER ACKNOWLEDGES
AND AGREES THAT INDIVIDUAL RESULTS MAY VARY. THERE IS NO GUARANTEE THAT OWNER
WILL EARN ANY MONEY CONTRACTING WITH AGENT. EXAMPLES OF PAST SUCCESS ARE NOT TO
BE INTERPRETED AS A PROMISE OR GUARANTEE OF EARNINGS. EARNING POTENTIAL IS ENTIRELY
DEPENDENT ON MANY MARKET FACTORS, IDEAS AND TECHNIQUES, AND CONDITIONS OF THE
MARKETPLACE. AGENT DOES NOT SELL A BUSINESS OPPORTUNITY OR LIKE CLAIMS UNDER THIS
AGREEMENT AS A "GET RICH SCHEME" PROGRAM, GUARANTEED SYSTEM, FRANCHISE SYSTEM
OR A BUSINESS IN A BOX. ANY CLAIMS MADE OF ACTUAL EARNINGS OR EXAMPLES OF ACTUAL
RESULTS CAN BE VERIFIED UPON REQUEST. OWNER’S LEVEL OF SUCCESS IN ATTAINING THE
RESULTS CLAIMED IN AGENT’S MATERIALS DEPENDS ON THE TIME OWNER DEVOTES TO THE
PROGRAM, IDEAS AND TECHNIQUES MENTIONED, OWNER’S FINANCES, KNOWLEDGE, MARKET
CONDITIONS AND VARIOUS SKILLS. SINCE THESE FACTORS DIFFER BETWEEN COMPANIES, AGENT
CANNOT GUARANTEE OWNER’S SUCCESS OR INCOME LEVEL. NOR IS AGENT RESPONSIBLE FOR
ANY OF OWNER’S ACTIONS. THERE CAN BE NO ASSURANCE THAT ANY PRIOR SUCCESSES, OR
PAST RESULTS, AS TO INCOME EARNINGS, CAN BE USED AS AN INDICATION OF FUTURE SUCCESS
OR RESULTS. MAKING DECISIONS BASED ON ANY INFORMATION PRESENTED IN AGENT’S
PRODUCTS, SERVICES OR WEBSITE SHOULD BE DONE ONLY WITH THE KNOWLEDGE THAT
OWNER COULD EXPERIENCE SIGNIFICANT LOSSES. AGENT DOES NOT OFFER ANY TAX,
ACCOUNTING, FINANCIAL OR LEGAL ADVICE. OWNER AGREES TO CONSULT IT OWN
ACCOUNTANT, ATTORNEY AND FINANCIAL ADVISOR FOR ADVICE ON THESE TOPICS.
13. LIMITATION OF LIABILITY: EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW,
IN NO EVENT SHALL AGENT OR ANY OF AGENT’S DIRECTORS, OFFICERS, EMPLOYEES,
SHAREHOLDERS, LICENSORS, INDEPENDENT CONTRACTORS, SUBCONTRACTORS, SUPPLIERS,
AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, TELECOMMUNICATIONS PROVIDERS,
ATTORNEYS AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,
CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM
OR RELATED TO THIS AGREEMENT, THE PRIVACY POLICY, THE SERVICES, THE CONTENT, THE
MATERIALS, OWNER’S OR A THIRD PARTY’S USE OR ATTEMPTED USE OF THE APPLICATIONS,
WEBSITES OR ANY SERVICE, CONTENT OR MATERIALS REGARDLESS OF WHETHER AGENT HAS
HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES,
WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL,
COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF
THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY,
WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY),
WARRANTY, OR OTHERWISE. IN NO EVENT SHALL AGENT’S LIABILITY TO OWNER EXCEED FIVE
THOUSAND DOLLARS ($5,000.00).
14. DISCLAIMERS: AGENT’S SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT
ANY REPRESENTATIONS OR WARRANTIES. OWNER MAY NOT RELY UPON ANY REPRESENTATION
OR WARRANTY REGARDING AGENT SERVICES MADE BY ANY THIRD PARTY IN CONTRAVENTION
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OF THE FOREGOING STATEMENTS, INCLUDING, BUT NOT LIMITED TO REPRESENTATIONS BY
THIRD PARTY SERVICE PROVIDERS. OWNER UNDERSTANDS AND AGREES THAT AGENT SHALL
BEAR NO RISK WHATSOEVER AS TO THE SALE OF PRODUCTS OR SERVICES. AGENT SPECIFICALLY
DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER
EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF
DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH
RESPECT TO AGENT SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS
AGREEMENT. AGENT MAKES NO REPRESENTATIONS REGARDING THE SPECIFIC PROFITABILITY OF
OWNER’S STORE AND OWNER FURTHER RECOGNIZES ANY INFORMATION OR DEMONSTRATIONS
PROVIDED BY AGENT TO OWNER REGARDING THE PROFITABILITY OF ANY THIRD PARTIES SHALL
BE DEMONSTRATIVE IN NATURE ONLY AND OWNER DOES NOT RELY UPON NOR DOES AGENT
REPRESENT SUCH DEMONSTRATIVE THIRD PARTY SUCCESS AND/OR PERFORMANCE IN ANY
MANNER WHATSOEVER CREATES ANY GUARANTEE, REPRESENTATION, WARRANTY, OR
OTHERWISE REGARDING OWNER’S STORE PROFITABILITY. FURTHER, AGENT DOES NOT
REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) THE USE OF AGENT’S SERVICES,
APPLICATIONS AND OTHER THINGS PROVIDED VIA AGENT WILL BE SECURE, TIMELY,
UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER
HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) AGENT’S SERVICES, APPLICATIONS, SERVICES OR
CONTENT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE
ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY SERVICES, INFORMATION OR OTHER
MATERIAL OBTAINED BY OWNER THROUGH AGENT’S SERVICES, APPLICATIONS OR OTHER
THINGS PROVIDED VIA AGENT WILL MEET OWNER’S REQUIREMENTS OR EXPECTATIONS; (E)
ERRORS OR DEFECTS IN AGENT’S SERVICES, APPLICATIONS OR OTHER THINGS PROVIDED VIA
AGENT WILL BE CORRECTED; OR (F) AGENT’S SERVICES, APPLICATIONS OR OTHER THINGS
PROVIDED VIA AGENT SUCH AS THE SERVERS THAT MAKE THE SERVICES, APPLICATIONS AND
WEBSITES AVAILABLE, OR INFORMATION OBTAINED BY OWNER FROM AGENT, ARE FREE OF
VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS AND
WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
15. DISPUTE RESOLUTION: OWNER AGREES THAT IT HAS READ THIS ARBITRATION PROVISION
CAREFULLY TO UNDERSTAND ITS RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, OWNER AGREES
THAT ANY CLAIM ARISING UNDER THIS AGREEMENT THAT OWNER MAY HAVE IN THE FUTURE
MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. OWNER
ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS
THAT OWNER WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO
APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. OWNER AGREES THAT IT MAY ONLY BRING
A CLAIM IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS
MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OWNER FURTHER
AGREES THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR
OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
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If Owner has a complaint, dispute, or controversy, Owner agrees to first contact Agent at
promasterlight@gmail.com to attempt to resolve the dispute or controversy informally. Owner
understands and agrees that merely submitting customer support tickets or otherwise requesting
assistance from Agent in the normal course of business (e.g., via Freshdesk) does not constitute
adequate notice to Agent of the existence of a complaint, dispute, or controversy within the
meaning of this Section. Any complaint, dispute, or controversy arising out of or related to the
use of the Services, Applications, Websites or any other thing governed under this Agreement,
any content, services, or materials, or Owner’s relationship with Agent that cannot be resolved
through such informal process or through negotiation within 120 days of the date Agent first
received notice of such claim shall be resolved by binding, confidential arbitration administered
by the American Arbitration Association (“AAA”), and judgment on the award rendered may be
entered in any court having jurisdiction thereof. The arbitration will be conducted by a single
neutral arbitrator in the English language in Brooklyn, N.Y. unless both Parties agree to
conduct the arbitration by telephone or written submissions. The arbitrator shall be selected by
agreement of the Parties or, if the Parties cannot agree, chosen in accordance with Rules of the
AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s
Commercial Arbitration Rules and Procedures, in effect at the time of submission of the demand
for arbitration. The AAA’s Rules are available at www.adr.org or by calling 1-800-778-7879. The
arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the
interpretation, construction, validity, applicability, or enforceability of this Agreement, Agent’s
Terms and Conditions of Use, the Privacy Policy, this arbitration provision, and any other terms
incorporated by reference into Agreement. The arbitrator shall have the exclusive and sole
authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive
and sole authority to determine whether this arbitration agreement can be enforced against a
non-signatory to this agreement and whether a non-signatory to this agreement can enforce this
provision against you or us.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules. In
all other respects, the Parties shall each pay their own additional fees, costs, and expenses,
including, but not limited to, those for any attorneys, experts, documents, and witnesses. The
arbitrator shall follow the substantive law of the State of New York without regard to its conflicts
of laws principles. Any award rendered shall include a confidential written opinion and shall be
final, subject to appeal under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended. Judgment
on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
OWNER UNDERSTANDS THAT IT WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT,
TO HAVE A JUDGE OR JURY DECIDE ITS CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE
ACTION. HOWEVER, OWNER UNDERSTANDS AND AGREES TO HAVE ANY CLAIMS DECIDED
INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION IN
ACCORDANCE WITH THIS ARBITRATION PROVISION.
16. AGENT’S ADDITIONAL REMEDIES: To prevent or limit irreparable injury to Agent, in the event of
any breach or threatened breach by Owner of the provisions of this Agreement or any
infringement or threatened infringement by Owner of the intellectual property of Agent’s or a
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third-party, Agent shall be entitled to seek a temporary restraining order and preliminary and
permanent injunctions or other equitable relief from a federal or state court of competent
jurisdiction located in Brooklyn, New York restraining such breach, threatened breach, infringement,
or threatened infringement. Nothing in this Agreement shall be construed as prohibiting Agent
from pursuing in court any other remedies available to Agent for such breach, threatened breach,
infringement, or threatened infringement, including the recovery of monetary damages from
Owner. Owner hereby irrevocably consents to the exclusive personal jurisdiction of, and
exclusive venue in, the courts located in Brooklyn, New York for all such claims, and forever
waives any challenge to said courts’ exclusive jurisdiction or venue.
17. INDEMNIFICATION: To the fullest extent permitted by law, Owner agrees to defend, indemnify,
and hold Agent harmless, as well as Agent’s directors, officers, employees, shareholders,
licensors, independent contractors, subcontractors, suppliers, affiliates, parent companies,
subsidiaries, and agents from and against any and all claims, actions, loss, liabilities, damages,
expenses, demands, and costs of any kind, including, but not limited to attorneys’ fees and costs
of any litigation or other dispute resolution, arising out of, resulting from, or in any way
connected with or related to (1) Owner’s use, misuse, or attempt to use the Website and Store,
(2) information Owner submits or transmits electronically/digitally, (3) Owner’s breach of this
Agreement, the documents incorporated by reference into this Agreement, or the
representations and warranties provided by Owner in this Agreement, or (4) Owner’s violation
of any law or the rights of a third-party.
18. GENERAL PROVISIONS:
(H) Relationship of the Parties: The Parties hereto are engaged in the payment of a fee for
services. No other relationship other than those in the terms of this Agreement are
contemplated or entered into.
(I) Notices: All notices shall be sent electronically to the email address provided by each Party
to the other. All notices to Agent shall be sent to promasterlight@gmail.com with a
written copy furnished to eMarketing Mind LLC, 2930 W 30th St, Unit 10E4, Brooklyn
N.Y. 11224. All notices to Owner shall be sent to ___________________ (email address)
with a written copy furnished to ___________________ (mailing address). Such written
notice will be deemed given upon the earliest of: (i) in-person hand delivery, (ii) successful
email delivery, or (iii) three (3) days after the date the notice is placed in transit or mailed via
certified or registered mail, commercial carrier, or private delivery service.
(J) Severability: In the event any provision of this Agreement is held to be invalid or
unenforceable for any reason, the remaining provisions will continue in full force and
effect without being impaired or invalidated in any way. The Parties agree to replace any
invalid provision with a valid provision that most closely approximates the intent and
economic effect of the invalid provision.
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Agent Initials Owner Initials
(K) Assignability: This Agreement is freely assignable by Agent and shall inure to the benefit
of and may be enforced by Agent and Agent’s parents, successors and assigns. Owner
may not assign this Agreement or transfer any of Owner’s rights or responsibilities
hereunder to any non-Party to this Agreement without the express written consent of
Agent.
(L) Informed Consent: Owner specifically agrees and acknowledges that:
i. Owner has read this Agreement in its entirety and understands all of its terms;
ii. by this Agreement, Owner has been advised to consult with an attorney of
Owner’s choosing before executing this Agreement, and Owner has had consulted
with such counsel as Owner deemed necessary; and
iii. Owner knowingly, freely, and voluntarily assents to all of this Agreement’s terms
and conditions including, without limitation, the minimum monthly maintenance
fee, the arbitration clause and the limitation of liability.
(M) Amendment: Because the Internet and e-commerce industries evolve and change over
time, Agent may modify this Agreement, from time to time, to comply with any additional
rules or policies that may be required under the laws of the United States or any other
governing body, or to adjust to changing business circumstances. Agent may from time to
time provide Owner with modifications to or updated versions of this Agreement via
electronic means. In such cases, Owner shall have thirty (30) days in which to accept said
modifications or new versions. Said modifications or new versions shall be deemed to be
rejected by Owner in the event that it either affirmatively rejects, or does not
affirmatively accept, the same within such period of time, in which case this Agreement
shall terminate with no further obligations due from Agent to Owner.
(N) Governing Law: This Agreement and performance thereof shall be interpreted, construed,
and enforced in all respects in accordance with the laws of the State of New York.
(O) Waiver: The failure of Agent to insist on or enforce strict performance of any provision of
this Agreement, or to exercise any right or remedy under this Agreement or applicable
law will not be construed as a waiver or relinquishment of the right to assert or rely upon
any such provision, right or remedy in that or any other instance. Waiver by Agent of a
breach of any provision contained herein must be in writing, and no such waiver may be
construed as a waiver of any other and/or succeeding breach of such or any other
provision of this Agreement, or a waiver of the provision itself.
(P) Force Majeure: Agent shall not be responsible for any failure to perform beyond its
reasonable control, including, without limitation acts of God, acts or omissions of civil or
military authority, civil disturbances, wars, strikes or other labor disputes, fires,
transportation contingencies, COVID-19 and other health-related catastrophes, or
interruptions in telecommunications or internet services, third party vendors or network
provider services.
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Agent Initials Owner Initials
(Q) Merger: This Agreement constitutes the entire agreement between the Parties and
supersedes all prior memoranda or agreements relating thereto, whether oral or in
writing. Any and/or all prior agreements, whether express or implied, are hereby revoked
in their entirety, regardless if such express or implied terms are in contradiction to the
terms of this Agreement or are not addressed by the terms of this Agreement.
RECORDING OF AGREEMENT, Owner shall not record this Agreement on the Public Records of
any public office. In the event that Owner shall record this Agreement, this Agreement shall, at Agent’s
option, terminate immediately and Agent shall be entitled to all rights and remedies that it has at law
or in equity.
IN WITNESS WHEREOF, Owner acknowledges that it has thoroughly read this Agreement and
understands that Agent and its representatives make NO statements, representations, or guarantees
concerning sales or income that Owner may earn or receive. The Parties have executed this
Agreement as of the Effective Date specified above.
ACCEPTED AND AGREED:
OWNER
XXX, CEO
XXX LLC
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